I received a few requests to provide some information on probate mediation. 

Probate is the legal term used to describe the administering of a deceased person’s estate with or without a will. Conflicts can arise when heirs and beneficiaries disagree. Probate court judges prefer that parties attempt mediation before a trial is scheduled. In cases involving disputes among family members, the goal is to facilitate an amicable resolution, which can have lasting benefits for the family. 

Attorneys play a significant part in probate mediation. The attorneys provide legal advice to their clients before the mediation, draft a mediation brief and advocate for their clients to protect their rights. 

Such mediators are more likely to be current or retired probate judges or attorneys with expertise in probate law. Nonetheless, the mediator does not act as a judge or decide for the parties. Intead, they facilitate communication and assist the parties in reaching mutually accepted resolutions.

As a generalization, retired judges and attorneys are comfortable using the evaluative style of mediation to express their opinions about proposals under discussion. A retired probate judge may express the opinion that a party’s case would likely not be sustained in trial, which is why some parties appreciate having an evaluative mediator with experience in probate law as their mediator. Other mediators will be more comfortable with the facilitative style, which focuses more on assisting the parties in negotiations and not evaluating nor giving opinions about the issues under discussion.

There is evidence to suggest that probate mediations are more likely to reach agreements than other forms. It’s been estimated that over 90% of probate cases settle before trial, whether by negotiation or mediation.

When I am asked just what mediators can do when parties are deadlocked, I tell stories about Bill Usery.

Willie Juilian Usery, Jr. was born in Georgia in 1923. After serving in the Navy during World War II, he returned to Georgia to work at a cork company. Recognizing his organizing talent, the International Association of Machinists sent him to Cape Canaveral to negotiate contracts with aerospace industries. In the 1960s he represented the union on a presidential committee on labor at missile sites. After that President Nixon appointed him assistant secretary of labor for labor-management relations. In 1973, he was named director of the Federal Mediation and Conciliation Service and later Secretary of Labor.

After public service, he was an active consultant and mediator into the 2000s. Theodore W. Kheel, the noted labor peacemaker, called him “the most successful mediator in the country’s history.” One AFL-CIO union leader described him as a “country slicker” who disguised his intelligence behind a rustic persona and an ever-present cigar. 

His mediations are legendary: the first collective bargaining agreement among seven unions in the newly created, semi-autonomous U.S. Postal Service; the National Football League preseason strike; the 13-month walkout of mine workers in Harlan County, Kentucky; and more.

He had the reputation of being one the government’s hardest-working civil servants. His office had a shower stall, a refrigerator (to ice martinis), and a humidor (for cigars, which he would light up at 2 a.m.). 

He was universally trusted. Both sides in mediations were comfortable telling him how far they were prepared to go and with that information he was able to guide the parties towards agreements. 

There are many stories of Usery knowing just what to do and at just the right time - For example:

During a deadlocked teacher’s strike in Philadelphia, Usery is believed to have said, “Okay, we need to take a break. Everybody go back home, have a shower and get something to eat—and meet back here in two hours.” When they reconvened, Usery said, “Now we’re not going to have any more of that 36-hour stuff, are we?” The strike was settled in three hours. 

When an extended session between railroad workers and management refused to talk with each other, Usery left the room for his office for a cigar. He returned wearing a button from the car rental company Avis, which read “We Try Harder.”  The parties saw the humor, laughed, and did try harder and reached settlement. What made the difference? His reputation, his commitment and the tension release from his unexpected humor—all those traits and several more. 

I was once told that in difficult extended mediations that were stalled, Usery would ignore requests for a comfort break. Reportedly, he told an associate that one of the most important requirements of a mediator is “a strong bladder.” I would rephrase this comment in his honor, that mediators are eternal optimists, and truly believe that disputing parties can reach mutually acceptable agreements, but sometimes require a little creative urging.